Born to surrogate, child has no legal mother, Quebec judge rules

A Quebec woman has no legal right to the child she paid a surrogate to carry for her, a judge has ruled, leaving the child without a legal mother.

The case is stirring up debate in Quebec legal circles over the province's ban on surrogacy and the impact the law has on children caught in the middle.

'It leaves this child in kind of a limbo.' — Philippe-André Tessier, president,Young Bar Association of Montreal

After years of unsuccessful attempts to become pregnant, the man and woman, whose names are protected by a publication ban, paid a surrogate mother they found on the internet $20,000 to carry a child for them.

After the child was born, the surrogate gave up her legal claim to the baby. The couple went to court to adopt the child, admitting that they had given the surrogate a payment for her service.

Judge Michel Dubois ruled in Quebec court on Jan. 6 that only the man has a legal claim because his sperm was used to inseminate the surrogate's egg.

The ruling leaves the child with no legal mother.

Philippe-André Tessier, president of the Young Bar Association of Montreal, said the decision was not in the best interest of the child.

"It leaves this child in kind of a limbo. If the father dies this child is then an orphan being raised by a stranger," he said.

Ruling sends message: prof

Section 541 of the Quebec Civil Code states that any agreement involving a woman who becomes pregnant for another person is null and void.

University of Sherbrooke law professor Michel Tétreault said the judge had no choice but to send a message.

"You cannot, by going through an adoption, bypass what is illegal. The end doesn't justify the means," Tétreault said.

However, he added, the law on surrogacy needs clarification. Under federal law, the practice is legal but with some restrictions.

Under the Assisted Human Reproduction Technology Act passed in 2004, a surrogate who carries a fetus for someone else may be reimbursed for expenses related to the pregnancy, such as prenatal vitamins and costs of travelling to see a doctor.

However, the surrogate cannot receive any other payment for carrying the child.

As it stands now, Tétreault said, the law encourages Quebec couples who use a surrogate to lie to judges in order to adopt.

The Quebec Court of Appeal ruled in June 2008 that the federal law is unconstitutional. The case is now under consideration by the Supreme Court of Canada.